Opposition Brief — Jim Feehan, Petitioner v. Rick Marcone, et al.

No. 18-1470

IN THE

Supreme Court of the United States

————

JIM FEEHAN,

v.

Petitioner,

RICK MARCONE, et al.,

Respondents.

————

On Petition for a Writ of Certiorari to the

Supreme Court of Connecticut

————

BRIEF IN OPPOSITION

————

WILLIAM BLOSS

Counsel of Record

EMILY ROCK

KOSKOFF KOSKOFF &

BIEDER P.C.

350 Fairfield Avenue

Bridgeport, CT 06604

(203) 336-4421

bbloss@koskoff.com

erock@koskoff.com

Counsel for Respondent

Philip L. Young III

July 24, 2019

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

ii

STATEMENT OF THE CASE ............................

1

REASONS FOR DENYING CERTIOTARI ........

4

I. AN UNINTENTIONAL MISTAKE IN

ELECTION ADMINISTRATION IS

INSUFFICIENT TO SUPPORT AN

EQUAL PROTECTION OR DUE

PROCESS CLAIM ....................................

4

II. THE CONNECTICUT HOUSE OF

REPRESENTATIVES’ ACTIONS AFTER

THE STATE SUPREME COURT’S

DECISION ARE NOT PART OF THE

PLEADINGS OR RECORD AND

CANNOT BE CONSIDERED IN THE

FIRST INSTANCE HERE ........................

15

CONCLUSION ....................................................

18

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Adams v. Robertson,

520 U.S. 83 (1997) .....................................

17

Anderson v. Ballard,

2018 WL 1384099

(E.D. Ky. Mar. 16, 2018) ...........................

14

Bennett v. Yoshina,

140 F.3d 1218 (9th Cir. 1998) .....................

10

Bd. of Directors of Rotary Int’l v.

Rotary Club of Duarte,

481 U.S. 537 (1987) ...................................

17

Bonas v. Town of N. Smithfield,

265 F.3d 69 (1st Cir. 2001) .......................

10

Bush v. Gore,

531 U.S. 98 (2000) ................................... 4, 5, 12

City of Springfield, Mass. v. Kibbe,

480 U.S. 257 (1987) ...................................

17

Collins v. City of Harker Heights, Tex.,

503 U.S. 115 (1992) ...................................

12

Cty. of Sacramento v. Lewis,

523 U.S. 833 (1998) ...................................

5

Crim v. Thompson,

69 F. App’x 276 (6th Cir. 2003) ................ 11, 12

D’Agostino v. Delgadillo,

111 F. App’x 885 (9th Cir. 2004) ..............

10

Daniels v. Williams,

474 U.S. 327 (1986) ...................................

5

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Davis v. Hill,

2017 WL 1064151

(M.D. Tenn. Mar. 21, 2017) ......................

14

Feehan v. Marcone,

331 Conn. 436 (2019) ........................ 3, 6, 14, 15

Feehan v. Marcone,

2018 WL 7501250 (Conn.

Super. Dec. 13, 2018) ................................

2, 3

Gamza v. Aguirre,

619 F.2d 449 (5th Cir. 1980) .....................

11

Gold v. Feinberg,

101 F.3d 796 (2d Cir. 1996) ...................... 2, 7, 8

Green v. Woodall,

2017 WL 4838705

(M.D. Tenn. Oct. 26, 2017) .......................

14

Griffin v. Burns,

570 F.2d 1065 (1st Cir. 1978) ...................

9

Hendon v. N. Carolina State Bd. of Elections,

710 F.2d 177 (4th Cir. 1983) .....................

11

Hennings v. Grafton,

523 F.2d 861 (7th Cir. 1975) .....................

11

Hunter v. Hamilton Cty. Bd. of Elections,

635 F.3d 219 (6th Cir. 2011) ............... 12, 13, 14

In re Elianah T.-T.,

327 Conn. 912 (2017) ................................

16

In re Ohio Execution Protocol Litig.,

2018 WL 2118817

(S.D. Ohio May 8, 2018) ............................

14

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Jones v. Lawry,

2019 WL 2482361

(W.D. Mich. June 14, 2019) ......................

14

Kingsley v. Hendrickson,

135 S. Ct. 2466 (2015) ...............................

5

League of Women Voters v. Brunner,

548 F.3d 463 (6th Cir. 2008) ....................passim

Lecky v. Va. Bd. of Elections,

285 F. Supp. 3d 908 (E.D. Va. 2018) ........

8

Lewellen v. Metro. Gov’t of Nashville

& Davidson Cty., Tenn.,

34 F.3d 345 (6th Cir. 1994) .......................

12

Maye v. Klee,

915 F.3d 1076 (6th Cir. 2019) ...................

12

Minnesota Voters Alliance v. Ritchie,

720 F.3d 1029 (8th Cir. 2013) ...................

9

Parra v. Neal,

614 F.3d 635 (7th Cir. 2010) .....................

9

Pennsylvania Dep’t of Corr. v. Yeskey,

524 U.S. 206 (1998) ...................................

17

Powell v. Power,

436 F.2d 84 (2d Cir. 1970) .......................passim

Przybysz v. City of Toledo,

746 F. App’x 480 (6th Cir. 2018) ..............

14

Sanders v. City of Hodgenville, Kentucky,

323 F. Supp. 3d 904 (W.D. Ky. 2018) .......

14

Shannon v. Jacobowitz,

394 F.3d 90 (2d Cir. 2005) ........................ 4, 5, 9

v

TABLE OF AUTHORITIES—Continued

Page(s)

Siegel v. LePore,

234 F.3d 1163 (11th Cir. 2000) ..................

10

Snowden v. Hughes,

321 U.S. 1, 64 S. Ct. 397,

88 L.Ed. 497 (1944) ...................................

7, 8

Stewart v. Blackwell,

444 F.3d 843 (6th Cir. 2006),

vacated and superseded,

473 F.3d 692 (6th Cir. 2007) .....................

12

United States v. Williams,

504 U.S. 36 (1992) .....................................

17

Warf v. Bd. of Elections of Green Cty., Ky.,

619 F.3d 553 (6th Cir. 2010) .....................

4

Webb v. Webb,

451 U.S. 493 (1981) ...................................

17

Welker v. Clarke,

239 F.3d 596 (3d Cir. 2001) ......................

10

Williams v. Hacker,

2011 WL 4537966

(M.D. Tenn. Sept. 29, 2011) ......................

14

CONSTITUTION

U.S. Const. amend. XIV ..............................passim

Conn. Const. art. third, § 7 ..........................

1, 2

STATUTES

42 U.S.C. § 1983 ..........................................passim

vi

TABLE OF AUTHORITIES—Continued

RULES

Page(s)

Conn. House Rule 19 ....................................

16

OTHER AUTHORITIES

14 C.J.S. Civil Rights, Election as area of

conduct depriving civil rights (2019)........

9

STATEMENT OF THE CASE

Jim Feehan, a candidate for state representative

of the 120th House District, initiated this election

contest in Connecticut Superior Court on November

15, 2018, naming as defendants Connecticut state

officials Secretary of State Denise Merrill; Treasurer

Denise Nappier; and Comptroller Kevin Lembo (“the

State defendants”); as well as several local elections

officials. Philip L. Young III, Feehan’s opponent, intervened on November 20, 2018. Feehan initially invoked

only state law claims and sought declaratory relief, a

new election, and an injunction barring the State

defendants from certifying the election results.

The Connecticut Constitution provides that exclusive jurisdiction over a contested state legislative race

rests in the legislature itself. Conn. Const., art. third,

§ 7. Young moved to dismiss for lack of subject matter

jurisdiction, and the State defendants agreed that

the court lacked jurisdiction. In response, Feehan

amended his complaint to allege federal constitutional

violations. Young renewed the motion to dismiss, and

the State defendants again agreed that the plaintiff’s

only proper remedy was to challenge the election through

the House’s procedures, as required by the state

constitution.

The Amended Complaint asserted that a “mistake”

was made by poll workers in the Bunnell High School

precinct, a polling place for the 120th House District

as well as the 122nd House District. Am. Compl.

¶¶ 15-21. Poll workers allegedly gave 76 voters in the

120th district ballots for the 122nd district before the

mistake was discovered. As a result, Feehan alleged,

76 ballots were cast in the 122nd House District when

they should have been cast in the 120th. Id. ¶ 25.

Young’s margin of victory was less than the number of

2

ballots the complaint alleged were miscast. Id. ¶ 30.

Based on these allegations, Feehan asserted claims on

his own behalf and claims under 42 U.S.C. § 1983 that

both his and voters’ federal constitutional rights were

violated. Id. ¶¶ 46-66.

The Amended Complaint failed on its face to

establish a federal constitutional violation. It alleged

only “neglect” by certain election officials and “errors,”

Am. Compl. ¶¶ 33, 36, 38, not the deliberate and intentional discrimination necessary for a constitutional

deprivation. “[H]uman error in the conduct of elections

does not rise to the level of a Fourteenth Amendment

constitutional violation actionable under § 1983;” it is

“willful action by state officials intended to deprive

individuals of their constitutional right to vote” that

violates voters’ constitutional rights. Gold v. Feinberg,

101 F.3d 796, 798-803 (2d Cir. 1996) (emphasis added).

The trial court, after hearing arguments, dismissed

the complaint in part because “article third, § 7, of the

Connecticut constitution provides the legislature with

sole authority to resolve election disputes involving

State Representatives and State Senators.” Feehan v.

Marcone, 2018 WL 7501250, at *2 (Conn. Super. Dec.

13, 2018). Thus, “insofar as the plaintiff’s claims seek

a judicial determination that errors were committed in

the election or that a new election must be held, the

court lacks subject matter jurisdiction over those claims.”

Id. The Connecticut constitutional provision at issue

provides that “[e]ach house shall be the final judge of

the election returns and qualifications of its own members.” Conn. Const. art. third, § 7. The trial court

further held that the addition of federal constitutional

claims under 42 U.S.C. § 1983 did not give the court

jurisdiction over those claims. Feehan, 2018 WL

7501250, at *3. At the same time, the court granted

3

Feehan’s request for a temporary restraining order

prohibiting the State defendants from certifying the

election results and declaring Young the winner. Id.1

All three parties (Feehan, Young, and the State defendants) filed appeals of the trial court’s decision with

permission of the chief justice of the state Supreme

Court. Immediately after oral argument on December

21, 2018, the Connecticut Supreme Court issued an

order affirming that the trial court lacked jurisdiction

over the case and vacating the trial court’s temporary

injunction. Feehan v. Marcone, 331 Conn. 436, 445

(2019). The court followed that order with an extensive written decision on January 30, 2019, holding that

under the Connecticut Constitution, “exclusive jurisdiction over the plaintiff’s claims in the present case

lies with our state House of Representatives.” Id. at 468.

Addressing the plaintiff’s equal protection and due

process claims under 42 U.S.C. § 1983, the court held

that Feehan “has not sufficiently pleaded federal

constitutional claims.” Feehan, 331 Conn. at 476.

Because the plaintiff had not pleaded any “intentional

conduct sufficient to state a constitutional claim under

Second Circuit case law,” id. at 482, the court upheld

the trial court’s dismissal of the plaintiff’s claims of

constitutional violations.

1

The petitioner erroneously claims that the trial court “recognized that the constitutional rights of the Petitioner and of the

electors were violated in the election.” Pet’r’s Br. at 15. In

actuality, the court held—having never conducted an evidentiary

hearing in the case—that as to the temporary injunction, the

plaintiff had demonstrated that he was likely to prevail on the

merits of his underlying claim, not that he had proven the constitutional violations that he claimed. In any event, the Connecticut

Supreme Court vacated that injunction.

4

Feehan filed a motion for reargument and/or reconsideration on February 11, 2019. The Connecticut

Supreme Court denied the motion on February 27,

2019.

REASONS FOR DENYING CERTIORARI

I. AN UNINTENTIONAL MISTAKE IN

ELECTION ADMINISTRATION IS INSUFFICIENT TO SUPPORT AN EQUAL

PROTECTION OR DUE PROCESS CLAIM.

“The Supreme Court has recognized that the [s]tates

have long been held to have broad powers to determine

the conditions under which the right of suffrage may

be exercised.” Shannon v. Jacobowitz, 394 F.3d 90, 94

(2d Cir. 2005). “Only in extraordinary circumstances

will a challenge to a state [or local] election rise to the

level of a constitutional deprivation.” Warf v. Bd. of

Elections of Green Cty., Ky., 619 F.3d 553, 559 (6th Cir.

2010) (quoting Shannon, 394 F.3d at 94). “Were we to

embrace plaintiffs’ theory, this court would henceforth

be thrust into the details of virtually every election,

tinkering with the state’s election machinery, reviewing petitions, registration cards, vote tallies, and

certificates of election for all manner of error and insufficiency under state and federal law.” Powell v. Power,

436 F.2d 84, 86 (2d Cir. 1970).

Petitioner’s argument is, in short, that Bush v. Gore,

531 U.S. 98 (2000), reversed decades of jurisprudence and must mean that any mistake in election

administration—federal, state or local—implicates a

federally protected right. Initially, the precedential

value of Bush v. Gore is limited by the Court’s statement that “[o]ur consideration is limited to the present

circumstances, for the problem of equal protection in

5

election processes generally presents many complexities.” Bush v. Gore, 531 U.S. 98, 109 (2000).

Furthermore, Bush v. Gore involved a claim that state

standards for counting certain ballots were inconsistent—

in effect, a claim of a systemic inadequacy that led to

certain votes being counted and others not. But Bush

v. Gore does not stand for the proposition that an

election clerk’s pure mistake—negligence—in handing

a voter the wrong ballot can establish a federal constitutional violation. To the contrary, this Court has

held that “liability for negligently inflicted harm is

categorically beneath the threshold of constitutional

due process.” Kingsley v. Hendrickson, 135 S. Ct. 2466,

2472 (2015) (emphasis in original) (quoting Cty. of

Sacramento v. Lewis, 523 U.S. 833, 849 (1998)). See

also Daniels v. Williams, 474 U.S. 327, 330 (1986)

(holding that “merely negligent conduct may not be

enough to state a claim” for a constitutional violation).

“Far from an abuse of power, lack of due care suggests

no more than a failure to measure up to the conduct of

a reasonable person. To hold that injury caused by

such conduct is a deprivation within the meaning of

the Fourteenth Amendment would trivialize the

centuries-old principle of due process of law.” Id. at

332. See also Shannon, 394 F.3d at 94 (noting that

“[b]y ruling in Daniels that a negligent act could not

amount to a constitutional deprivation, the [Supreme]

Court . . . clearly articulated that a finding of intentional conduct was a prerequisite for a due process

claim,” and applying the Daniels holding to the election

context).

To establish federally protected equal protection

and due process violations in connection with election

administration, a plaintiff must show an intentional

act on the part of government officials, or a government

6

policy to suppress voting rights. The petitioner here,

however, alleged nothing more than “mistake” and

“neglect of official duties,” Am. Compl. ¶¶ 19-20, 36,

not the intentional or purposeful discrimination required

to establish a constitutional violation. As a result,

no due process or equal protection violation was pled.

Unbroken circuit court authority makes clear that

intentional action or a systemic policy is required,

notwithstanding petitioner’s attempt to manufacture

a circuit split that simply does not exist. The

Connecticut Supreme Court correctly decided this

issue: “It is well settled in the Second Circuit that

establishing an equal protection violation requires . . .

proof of intentional discrimination,” and that the same

is required for allegations of due process violations.

Feehan, 331 Conn. at 480-81. The court also noted

that “[t]he Second Circuit has observed that it is not

alone in requiring proof of intent,” citing cases from

the First, Fourth, Ninth, and Eleventh Circuits. Id. at

480 n.37.

In Powell v. Power, 436 F.2d 84, 88 (2d Cir. 1970),

the Second Circuit construed 42 U.S.C. § 1983 as it

applies to claims of voting rights violations to require

“intentional or purposeful discrimination”:

The plaintiffs invoke the first section of the

Civil Rights Act of 1871, 42 U.S.C. § 1983, as

a second Congressional authorization for the

federal courts to remedy errors in the election

process. This concededly broadly-drafted statute

provides a remedy against ‘every person who,

under color of any statute * * * subjects * * *

any citizen of the United States * * * to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws.’

Three constitutional guarantees are claimed

7

to have been abridged here: the equal protection and due process clauses of the fourteenth

amendment, and the requirement of article I,

section 2, that Representatives be ‘chosen * * *

by the People.’

These claims do not require extended consideration. Uneven or erroneous application of an

otherwise valid statute constitutes a denial of

equal protection only if it represents ‘intentional

or purposeful discrimination.’ Snowden v.

Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed.

497 (1944). See Swain v. Alabama, 380 U.S.

202, 204-205, 85 S.Ct. 824, 13 L.Ed.2d 759

(1965); Oyler v. Boles, 368 U.S. 448, 82 S.Ct.

501, 7 L.Ed.2d 446 (1962). Similarly, the due

process clause and article I, section 2 offer no

guarantee against errors in the administration of an election. New York Election Law

§§145, 330(2) provide a method for correcting

such errors as are made, and the plaintiffs do

not contest the fairness and adequacy of that

remedy. And while article 1, section 2 may

outlaw purposeful tampering by state officials

with the conduct of a primary election for a

Congressional seat, United States v. Classic,

313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368

(1941), we cannot believe that the framers of

our Constitution were so hypersensitive to

ordinary human frailties as to lay down an

unrealistic requirement that elections be free

of any error.

Powell, 436 F.2d at 88 (emphasis added).

In Gold v. Feinberg, 101 F.3d 796, 798-803 (2d Cir.

1996), the court applied Powell, affirming its validity.

The Second Circuit reversed a grant of injunctive relief

8

because although the plaintiffs alleged mistakes and

incompetence that impeded the right to vote in a primary (including the inclusion of an ineligible candidate

on 2,000 of 77,000 ballots), the plaintiffs did not allege

intentional misconduct. The plaintiffs, who included

voters and disappointed candidates, moved for a

preliminary injunction enjoining the certification of

the election results. After an evidentiary hearing, the

District Court found that election errors were “willful”

and granted the injunction “on the basis of § 1983.” Id.

at 800. The Second Circuit pointed out that under

Powell, “a § 1983 action to remedy errors in the election process allegedly violating the equal protection

clause does not exist unless the state action constituted ‘intentional or purposeful discrimination.’” Id.

(quoting Snowden v. Hughes, 321 U.S. 1, 8 (1944)).

The District Court’s finding of a violation for errors

that were not intentional or purposeful was “a radical

departure from settled principles underlying § 1983

liability in voters’ rights cases.” Id. at 801. The

Second Circuit concluded: “where, as here, there exists

a state law remedy to the election irregularities that

is fair and adequate, human error in the conduct of

elections does not rise to the level of a Fourteenth

Amendment constitutional violation actionable under

§ 1983 in the absence of willful action by state officials

intended to deprive individuals of their constitutional

right to vote. Short of that, human error is something

we all have to live with.” Id. at 802.2

2

See also Lecky v. Va. Bd. of Elections, 285 F. Supp. 3d 908,

918-20 (E.D. Va. 2018) (refusing to enter temporary injunction in

§ 1983 case where some voters were given wrong ballots because

plaintiffs “do not allege that the incorrect assignment of voters

was the result of a state policy, regulation or statute,” or that they

were victims of “intentional or purposeful discrimination” and

9

The petitioner is incorrect when he claims that

there is a circuit split. The circuits agree that more

than mere mistake or “garden variety irregularities”

is required to prove a constitutional violation in the

election context (and indeed, the petitioner has not

even claimed that any circuit other than the Sixth

has held otherwise). “Circuit courts have uniformly

declined to endorse action under § 1983 with respect

to garden variety election irregularities.” Griffin v.

Burns, 570 F.2d 1065, 1076 (1st Cir. 1978). See also,

e.g., Minnesota Voters Alliance v. Ritchie, 720 F.3d 1029,

1032 (8th Cir. 2013) (“[S]ection 1983 is implicated only

when there is willful conduct which undermines the

organic processes by which candidates are elected.”)

(internal citation and quotation marks omitted); Parra

v. Neal, 614 F.3d 635, 637 (7th Cir. 2010) (“[W]e have

held that election irregularities implicate § 1983 only

when defendants have engaged in only when there is

willful conduct which undermines the organic processes by which candidates are elected. . . . By ‘willful’

thus they were not likely to succeed on the merits); Shannon v.

Jacobowitz, 394 F.3d 90, 95-96 (2d Cir. 2005) (“[C]ourts have

found due process violations in voting cases before, but each case

involved an intentional act on the part of the government or its

officials.”); 14 C.J.S. Civil Rights, Election as area of conduct

depriving civil rights § 48 (2019) (“Section 1983 of the Post-Civil

War Federal Civil Rights Acts, protecting against deprivations of

rights secured by the federal constitution and laws under color of

state law, does not afford a remedy for errors in the electoral

process in the absence of a showing of intentional or purposeful

discrimination, or willful conduct which undermines the processes by which candidates are elected. The availability of a state

law remedy for alleged irregularities in an election process precludes a section 1983 action in the absence of willful action by

state officials intended to deprive individuals of their constitutional right to vote. Mere negligence is an insufficient basis for a

section 1983 action in an electoral context.”).

10

we meant, at a minimum, that the alleged perpetrators had acted with the intent of undermining the

electoral process or impairing a citizen’s right to vote.”)

(internal citation and quotation marks omitted) (emphasis in original); League of Women Voters v. Brunner,

548 F.3d 463, 476 (6th Cir. 2008) (“[A]llegations of

mere negligence will not sustain an action under

§ 1983.”); D’Agostino v. Delgadillo, 111 F. App’x 885,

887 (9th Cir. 2004) (“D’Agostino cannot establish a

violation of a constitutional right because, at most, she

asserts negligence against the city officials for certifying Delgadillo’s qualifications and the election. Mere

negligence by city officials does not deprive an individual of liberty or property for purposes of procedural

due process.”); Bonas v. Town of N. Smithfield, 265

F.3d 69, 74 (1st Cir. 2001) (“[W]ith only a few narrow

and well-defined exceptions, federal courts are not

authorized to meddle in local elections. Consequently,

they normally may not superintend the step-by-step

conduct of local electoral contests or undertake the

resolution of ‘garden variety election irregularities.’”);

Welker v. Clarke, 239 F.3d 596, 597 n.3 (3d Cir. 2001)

(“If Welker’s claims were only that officials negligently

maladministered the election by not properly enforcing

the Pennsylvania residency requirements as interpreted by Welker, we would hesitate to intervene.

Under similar circumstances, other circuits have determined that such disputes do not state a constitutional

violation and therefore do not rise to the level appropriate to support federal court interference in a local

election.”); Siegel v. LePore, 234 F.3d 1163, 1187 (11th

Cir. 2000) (“[D]isputes over human or mechanical errors

in ballot counting, absent a showing of intentional

manipulation, do not rise to the level of a federal

constitutional violation.”); Bennett v. Yoshina, 140 F.3d

1218, 1226 (9th Cir. 1998) (“We have drawn a distinction

11

between ‘garden variety’ election irregularities and a

pervasive error that undermines the integrity of the

vote. . . . In general, garden variety election irregularities do not violate the Due Process Clause, even if they

control the outcome of the vote or election.”) (emphasis

added); Hendon v. N. Carolina State Bd. of Elections,

710 F.2d 177, 182 (4th Cir. 1983) (“[N]ot every election

irregularity gives rise to a constitutional claim. Whether

the irregularity amounts to a constitutional claim

depends on its severity, whether it was intentional or

more of a negligent failure to carry out properly the

state election procedures, and whether it erodes the

democratic process.”); Gamza v. Aguirre, 619 F.2d 449,

453 (5th Cir. 1980) (“[T]he determination that particular conduct constitutes a constitutional deprivation

rather than a lesser legal wrong depends on the nature

of the injury, whether it was inflicted intentionally or

accidentally, whether it is part of pattern that erodes

the democratic process or whether it is more akin to

a negligent failure properly to carry out the state

ordained electoral process . . . .”); Hennings v. Grafton,

523 F.2d 861, 864 (7th Cir. 1975) (“[T]he record here

shows at most irregularities caused by mechanical or

human error and lacking in invidious or fraudulent

intent; it does not show conduct which is discriminatory. . . [which] fall far short of constitutional

infractions.”).

The Sixth Circuit, contrary to the petitioner’s argument, has held explicitly that “allegations of mere

negligence will not sustain an action under § 1983” in

a voting rights action. League of Women Voters v.

Brunner, 548 F.3d 463, 476 (6th Cir. 2008). Likewise,

in Crim v. Thompson, the plaintiff alleged First and

Fourteenth Amendment violations under § 1983 for

election officials’ actions in allegedly thwarting his

efforts to be placed on the ballot for a primary election,

12

and the Sixth Circuit held that “Crim’s complaint

failed to state a claim because he could not show that

the defendants intentionally or purposefully discriminated against him.” Crim v. Thompson, 69 F. App’x

276, 278 (6th Cir. 2003). “The acts and omissions of

which Crim complained amounted to, at most, negligence or incompetence, and are not enough to support

a claim.” Id. “However unpleasant the prospect,

human error remains a part of the democratic process,

and no constitutional rule is going to change that fact.”

Stewart v. Blackwell, 444 F.3d 843, 895–96 (6th Cir.

2006) (Gilman, J., dissenting), vacated and superseded,

473 F.3d 692 (6th Cir. 2007) (quoting Powell for the

proposition that neither the Equal Protection nor the

Due Process clause “guarantee against errors in the

administration of an election”). Even “[g]ross negligence is not actionable under § 1983, because it is not

‘arbitrary in the constitutional sense.’” Lewellen v.

Metro. Gov’t of Nashville & Davidson Cty., Tenn., 34

F.3d 345, 351 (6th Cir. 1994) (quoting Collins v. City

of Harker Heights, Tex., 503 U.S. 115, 129 (1992)).

As recently as this year, albeit not in the election

context, the Sixth Circuit held that: “[o]f course, to

establish an equal protection violation, a plaintiff must

establish more than differential treatment alone—a

discriminatory intent or purpose is required.” Maye v.

Klee, 915 F.3d 1076, 1085 (6th Cir. 2019). While

“arbitrary and disparate treatment” may violate the

Fourteenth Amendment, negligence cannot. Brunner,

548 F.3d at 476 (citing Bush v. Gore, 531 U.S. 98, 10405 (2000)). Hunter v. Hamilton County Board of

Elections, on which petitioner relies, did not change

this standard: “garden variety election irregularities

may not present facts sufficient to offend the Constitution’s guarantee of due process.” Hunter v. Hamilton

Cty. Bd. of Elections, 635 F.3d 219, 232 (6th Cir. 2011)

13

(internal citation and quotation marks omitted). The

court in Hunter disagreed with the contention that

there must be a showing of “clear and intentional

discrimination,” but did not hold that negligence or mere

mistake was sufficient: rather, “the Equal Protection

Clause protects the right to vote from invidious and

arbitrary discrimination.” Id. at 234, n.13 (emphasis

added). And the Hunter court did not overturn the

Brunner holding that allegations of negligence will not

sustain an § 1983 action—indeed, the Hunter opinion

cites to Brunner. See Hunter, 635 F.3d at 231-32.

What is at issue here is an isolated mistake, the type

of “garden variety election irregularit[y]” that simply

does not implicate the Constitution. Hunter, 635 F.3d

at 232.

Moreover, “federalism concerns limit the

power of federal courts to intervene in state elections.”

Id. (internal citation and quotation marks omitted).

The Court in Hunter noted that “the cause for constitutional concern is much greater when the Board [of

Elections] is exercising its discretion in areas relevant

to the casting and counting of ballots, like evaluating

evidence of poll-worker error.” 635 F.3d at 235

(internal citation and quotation marks omitted). Here,

by contrast, the alleged constitutional violation was a

poll worker’s entirely inadvertent error in handing out

ballots to voters. There was no exercise of discretion,

no intentional decision or action. Compare Hunter,

635 F.3d at 235 (“Plaintiffs allege that the Board

14

treated some miscast provisional ballots more favorably

than others.”) (emphasis added).3

In this case, the amended complaint alleged nothing

more than a simple mistake by an elections clerk.

There was no allegation that the mistake was willful,

and there was no allegation of any systemic impropriety or policy. The Connecticut Supreme Court correctly

distinguished Hunter, holding that “Hunter is factually distinguishable because it concerned an election

board’s lack of coherent or consistent standards for the

treatment of provisional ballots, rather than an isolated

error like the one at issue in the present case.” Feehan

3

Courts in the Sixth Circuit have not interpreted Hunter as

the petitioner does here. They have consistently held that a

mistake or negligent act is not sufficient to raise a constitutional

claim under § 1983. See, e.g., Przybysz v. City of Toledo, 746 F.

App’x 480, 488–89 (6th Cir. 2018) (holding “evidence of negligence

is insufficient to sustain a § 1983 claim” in substantive due

process claim); Jones v. Lawry, 2019 WL 2482361, at *3 (W.D.

Mich. June 14, 2019) (“[A]llegations of negligence fall short of the

state of mind required to state an actionable § 1983 claim.”); In

re Ohio Execution Protocol Litig., 2018 WL 2118817, at *7 (S.D.

Ohio May 8, 2018) (“An Equal Protection violation requires an

intentional act by a state actor; . . . mistakes will happen and they

are not constitutional violations.”); Anderson v. Ballard, 2018 WL

1384099, at *4 (E.D. Ky. Mar. 16, 2018) (“An allegation of negligence is not sufficient to state a claim under § 1983” in deliberate

indifference claim); Sanders v. City of Hodgenville, Kentucky, 323

F. Supp. 3d 904, 913 (W.D. Ky. 2018) (“[N]egligence rarely rises

to the level of a constitutional violation.”); Green v. Woodall, 2017

WL 4838705, at *3 (M.D. Tenn. Oct. 26, 2017) (“[N]egligence

cannot sustain a § 1983 claim.”); Davis v. Hill, 2017 WL 1064151,

at *2 (M.D. Tenn. Mar. 21, 2017) (same, in Eighth Amendment

failure to protect claim); Williams v. Hacker, 2011 WL 4537966,

at *3 (M.D. Tenn. Sept. 29, 2011) (“[A]llegations of mere negligence will not sustain an action under § 1983.”) (quoting Brunner).

15

v. Marcone, 331 Conn. 436, 484 (2019). For similar

reasons, the court in Feehan concluded that:

Bush [v. Gore] is readily distinguishable because

that case involved a state’s widespread application of arbitrarily varying standards in

determining the intent of the voters. That

decision does not stand for the proposition

that any unintentional mistake by an election

official that casts doubt on the result of an election violates the United States constitution.

Id. at 484 (emphasis in original).

II. THE CONNECTICUT HOUSE OF REPRESENTATIVES’ ACTIONS AFTER THE

STATE SUPREME COURT’S DECISION

ARE NOT PART OF THE PLEADINGS OR

RECORD AND CANNOT BE CONSIDERED IN THE FIRST INSTANCE HERE.

Feehan claims that his due process rights were

violated by the actions of the Contested Election

Committee appointed by the Connecticut House of

Representatives. However, those actions took place

after the Connecticut Supreme Court’s decision and

were not subject to review by that Court; therefore,

they cannot be considered for the first time in the

instant petition for certiorari.

The Connecticut Supreme Court issued its oral decision on December 21, 2018 and published its written

opinion on January 30, 2019. The Connecticut House

of Representatives appointed a contested elections

committee that underwent a fact-finding process and

prepared a report, which was issued on February 4,

2019. See Pet’r’s Br. at 11. The committee report was

issued after the briefing and argument before the

Connecticut Supreme Court (and its summary order)

16

and the court’s published opinion.4 The petitioner

cannot now shoehorn those post-decision events into

the case by means of his unsupported and incorrect

claim that “the Connecticut Supreme Court itself

treated the House proceedings as a continuum of this

action.” Pet’r’s Br. at 17 n.9.5

A party must present arguments to the lower court

in order to raise the issue before this Court on a

petition for certiorari; petitioner seeks to argue here

for the first time events in the House that took place

after the Connecticut Supreme Court’s decision.

“Where issues are neither raised before nor considered

by the [lower court], this Court will not ordinarily

4

Nor does the fact that the petitioner discussed the House’s

actions in his motion for reargument/reconsideration bring it into

the record, since that motion improperly raised issues outside the

pleadings. “[A] motion for reconsideration is intended to demonstrate to the court that there is some decision or some principle

of law which would have a controlling effect, and which has been

overlooked, or that there has been a misapprehension of facts. . .

. It may also be used to address . . . claims of law that the [movant]

claimed were not addressed by the court. . . .” In re Elianah

T.-T., 327 Conn. 912, 913-14 (2017) (internal citation and quotation marks omitted). Events that occurred after a court issued its

decision are not a proper basis for a motion for reconsideration,

and the state Supreme Court did not suggest that it agreed

with the petitioner’s argument here or considered the question on

the merits.

5

Petitioner points to the Connecticut Supreme Court’s citation

to House Rule 19 in support of this baseless claim. That rule has

been adopted by each successive house in unchanged form since

1987. Thus, the parties briefed Rule 19 before the new House had

re-adopted the rule. Then, the 2019 House adopted Rule 19 in

identical form to the rule adopted by the House for many years in

a row. By citing to this rule, the Connecticut Supreme Court did

not somehow cause everything that followed in the House to be

retroactively a part of the record in this case.

17

consider them.” Pennsylvania Dep’t of Corr. v. Yeskey,

524 U.S. 206, 212–13 (1998) (internal citation and

quotation marks omitted). See also, e.g., United States

v. Williams, 504 U.S. 36, 41 (1992) (“Our traditional

rule . . . precludes a grant of certiorari only when the

question presented was not pressed or passed upon

below.”) (internal citation and quotation marks omitted);

Bd. of Directors of Rotary Int’l v. Rotary Club of Duarte,

481 U.S. 537, 550 (1987) (“It is well settled that this

Court will not review a final judgment of a state court

unless the record as a whole shows either expressly

or by clear implication that the federal claim was

adequately presented in the state system.”) (internal

citations and quotation marks omitted); City of

Springfield, Mass. v. Kibbe, 480 U.S. 257, 259 (1987)

(“We ordinarily will not decide questions not raised or

litigated in the lower courts.”).

A petitioner has the “burden of showing that the

issue was properly presented” to the lower court. Adams

v. Robertson, 520 U.S. 83, 86 (1997).

When the highest state court is silent on a

federal question before us, we assume that

the issue was not properly presented . . . and

the aggrieved party bears the burden of defeating this assumption . . . by demonstrating

that the state court had ‘a fair opportunity to

address the federal question that is sought to

be presented here.”

Id. (internal citation and quotation marks omitted).

See also Webb v. Webb, 451 U.S. 493, 501 (1981) (in

order for the Court to have jurisdiction, “there should

be no doubt from the record that a claim under a

federal statute or the Federal Constitution was presented in the state courts and that those courts were

apprised of the nature or substance of the federal

18

claim at the time and in the manner required by the

state law”) (emphasis in original). The Connecticut

Supreme Court did not address the Due Process claim

based on the state house’s action, as it was raised by

the petitioner for the first time in this certiorari

petition, or, to be generous, in his motion for reconsideration in the state Supreme Court. The petitioner

has cited no authority for his proposition that the

Connecticut House of Representatives’ actions can be

retroactively considered part of the Connecticut Supreme

Court’s decision which was released before the House

Committee issued its report. The petitioner has not

even attempted to meet his burden of showing that the

issue of post-decision conduct of the House was properly

presented in the court below, because it could not have

been.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

WILLIAM BLOSS

Counsel of Record

EMILY ROCK

KOSKOFF KOSKOFF &

BIEDER P.C.

350 Fairfield Avenue

Bridgeport, CT 06604

(203) 336-4421

bbloss@koskoff.com

erock@koskoff.com

Counsel for Respondent

Philip L. Young III

July 24, 2019